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November 6, 2011 | | Comments Off on The First Amendment and Occupy Wall Street’s Occupation of Zuccotti Park

by Tony Guo

Introduction

Over Fall Break I visited my fiancée in New York City. As part of my visit we went to Washington Square Park. We both graduated from New York University and Washington Square Park is a second home to us. It was the first place I met my fiancée. Before I graduated the park had undergone renovations forcing the two previous classes and my class to break tradition and graduate in Yankee stadium instead Washington Square Park. I was curious to see the recent renovations and excited to visit my favorite park. When we got near the park we saw rows of police vehicles. We had stumbled upon an Occupy Wall Street protest.

My fiancée and I made our way to the barricaded fountain and in the process received several copies of the same Occupy Wall Street newspaper. As we left the park to go to the vendor fair nearby I heard a protestor arguing with a resident. The protestor held a copy of the Constitution and a copy of the Occupy Wall Street newspaper. The protestor gave the newspaper to the resident who immediately threw it in the trash can. As the resident moved away, the protestor shouted “you are suppressing my First Amendment right to be heard.” The protestor having not taken William and Mary Professor Timothy Zick’s First Amendment class was unaware that the First Amendment only prohibits state actors such as a police officer from limiting his right to free speech and not private persons. The protestors should have said please recycle.

Background

The Occupy Wall Street protests began on September 17, 2012 and have grown considerably since then. The protests spread from park to park and then from city to city. On October 15, 2012 protestors from over 900 cities including Paris, Berlin, Tokyo, and Hong Kong held Occupy protests. The protests have largely been peaceful with the notable exception of Occupy Rome. In New York, Occupy Wall Street has gathered thousands of supporters including and was even able to occupy Time Square for several hours. The protestor’s demands are unclear but they share a general progressive attitude. The New York Times believes the objectives of the protests are to publicly air grievances.

The government is struggling to negotiate with protestors since there is no specific list of demands. Many protestors feel a list of demands would ruin the objective of the protest. The hub of Occupy Wall Street remains in Zuccotti Park where protestors are present 24 hours a day. Whether by planning or luck the protestors were very fortunate in their choice of Zuccotti Park. The characteristics of Zuccotti Park make it especially difficult for government regulation. Zuccotti Park is privately owned by Brookfield Office Properties but it was once a public park. The government has less power over a private park than a public park. Brookfield Office Properties is limited in its regulation because the park was at one time public. The private-public Zuccotti Park combined with actions of protestors may convince Mayor Bloomberg to force the Supreme Court to revisit several First Amendment issues.

Questions

What First Amendment rights do the Occupy Wall Street protestors have? Would the First Amendment strike down a government noise regulation? Can the government prevent protestors from sleeping in Zuccotti Park? Is Zuccotti Park a traditional forum of speech?

Discussion

Noise Regulations

Residents and businesses near Zuccotti Park have complained about the noise protestors are making. Most complaints have been about the loud drumming. Although New York City requires permits for “amplified sound” such as bullhorns as long as the drumming is not amplified no permit is necessary. The use of the human microphone (a crowd repeats what one speaker says) also does not require a permit. Businesses near the park are concerned that customers are pushed away by the loud noises and the general atmosphere. Several local business have seen significant decline in sales since the protests. Residents complain they are unable to enjoy the park or their homes because of noise. At least one resident feels the noise is adversely affecting her children’s ability to sleep and learn.

The First Amendment right to speech and assembly is not absolute. A well thought out time, place, and manner regulation could limit the protestor’s right to speak. Noise regulations are commonly used by the government to protect the privacy rights of businesses and residents. In Kovacs v. Cooper (336 U.S. 77) the Supreme Court ruled that a regulation that “applied only to loudspeakers emitting ‘loud and raucous’ noises” was constitutional. Justice Reed’s plurality opinion held that “[The] preferred position of freedom of speech [does] not require legislators to be insensible to claims by citizens to comfort and convenience.” Speakers’ First Amendment rights must be balanced with the rights of citizens to comfort and convenience.

In addition to the level of noise many businesses and residents are worried about the time of the noise. Shouting and drumming begin in the early morning and end around midnight. In Kovacs Justice Jackson found that residents should have the right to “quiet enjoyment of home and park.” Justice Frankfurter added “it is not for us to supervise the limits the legislature may impose in safeguarding the steadily narrowing opportunities for serenity and reflection.” A regulation tailored to the level of noise and to the length of noise may be constitutional under Kovacs. The community board representing the area surrounding Zuccotti Park has already attempted to negotiate with the group responsible for most of the drummers. The board reached a tentative agreement to restrict the drumming to four hours a day. However, at least one drummer says that he will disregard the restriction and plans to drum all the time.

The drumming problem is not limited to New York. In Chicago many of the drums used for the Occupy Chicago protest were found slashed. Rather than ban the use of drums, the government should consider a content neutral regulation restricting the noise level caused by drumming. In Ward v. Rock Against Racism (491 U.S. 781), the Supreme Court rejected a First Amendment challenge to a New York City regulation mandating that a concert was required to use sound systems and technicians provided by the city. The Court found that New York City’s interest in limiting excessive noise was substantial and the regulation was content neutral.

In Zuccotti Park the government has a similar substantial interest in reducing excessive noise. A regulation restricting the volume of all noises in Zuccotti Park would be content neutral. The next issue is whether a restriction on noise level is narrowly tailored. Justice Kennedy writing for the Court in Ward said “we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate content neutral interests but that it need not be the least-restrictive or least-intrusive means of doing so. Rather, [narrow] tailoring is satisfied ‘so long as [the] regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’” The standard in Ward is regulation friendly. A regulation limiting the time and manner of drumming would likely survive the Ward First Amendment analysis.

Sleeping in the Park

Protestors sleeping in the park were almost evicted for cleaning purposes. However, by mere coincidence or by planning, the park Occupy Wall Street chose to protest in has the unique status of being a private park reserved for public use in zoning laws. Zuccotti Park is an ideal location for protesting because as a private park it avoids the New York flat ban on sleeping in its public parks. And as a park reserved for public use, it is difficult for Brookfield Office Properties to make the decision to evict. However the Supreme Court has held that cleaning a park is a substantial interest.

In Clark v. Community for Creative Non-Violence (468 U.S. 288) the Court found a regulation that forbid sleeping is defensible either as a time, place, or manner restriction or as a regulation of symbolic conduct. Justice White writing for the majority found “[t]hat sleeping, like the symbolic tents themselves, may be expressive and part of the message delivered by the demonstration does not make the ban any less a limitation on the manner of demonstrating, for reasonable time, place, and manner regulations normally have the purpose and direct effect of limiting expression but are nevertheless valid.” The speech in Zuccotti Park is similar to the speech restricted in Clark. Just because Occupy Wall Street is communicating something by consistently occupying Zuccotti Park does not outweigh the government’s interest in sanitation and health.

The government must still be careful that its regulation is content neutral. In Clark the Court ruled that a prohibition on sleeping is content neutral and is not being applied because of disagreement with the message presented. If the regulation targets protests because of their speech the regulation will likely not survive the First Amendment. In a Clark footnote the Court held that “[t]hus, if the time, place, and manner restriction on expressive sleeping, if that is what is involved in this case, sufficiently and narrowly serves a substantial enough government interest to escape First Amendment condemnation, it is untenable to invalidate it under O’Brien on the ground that the governmental interest is insufficient to warrant the intrusion on the First Amendment concerns…” Sleeping in a park is expressive however it does not outweigh the interests the government has in sanitation and health.

Traditional forum for speech

The fate of the protestors in Zuccotti Park may depend on how the park is defined. Zuccotti Park is different from other forums the Supreme Court has addressed. The park was once the government owned Liberty Park before Brookfield Office Properties purchased it naming the park after its chairperson. The park’s history may be crucial in determining whether it is a traditional forum of speech.

If the Supreme Court finds the park a traditional forum of speech the next question is to look at the regulation itself. If the regulation is content based it must serve a compelling government interest and be narrowly drawn. This standard is similar to strict scrutiny and the most difficult for a regulation to survive. If the regulation is content neutral it must be narrowly tailored to serve a significant government interest and leave open ample alternative levels of communication. This standard is more similar to intermediate scrutiny than strict scrutiny. Most time, place, and manner regulations are content neutral and are analysis under intermediate scrutiny. To determine whether a regulation is content neutral the Supreme Court asks three questions. Does the regulation restrict conduct? Was the regulation adopted because of a disagreement with the message of the speech? And whether the guidelines for enforcing the statute are clear?

If Zuccotti Park is not a traditional forum it could either be a limited public forum or a non-traditional public forum. It is unlikely the Court will label Zuccotti Park a limited public forum because the government did not open the park to groups or a certain class of speaker but to all speech. The Court may label Zuccotti Park a non-traditional public forum. The standard for this classification is similar to rational basis. As long as the government’s regulation is viewpoint neutral and reasonably consistent with the government’s non-speech use of the facility than it is valid. How the Court classifies Zuccotti Park will determine the type of scrutiny that will be applied and the outcome of the case.

The private and public nature of Zuccotti Park is similar to the Lincoln Center plaza. The Lincoln Center complex was part of an urban renewal project in the 1950s. Originally New York City was in charge of the plaza, park areas and an underground garage. The plaza was conveyed to New York City by Lincoln Center, Inc. The Parks Department had jurisdiction over the park area which included the plaza. Four years after the complex opened the management of the public areas was turned over the Lincoln Center, Inc.

In Hotel & Rest. Employees Union v. New York Dep’t of Parks (311 F. 3d 534) the Second Circuit ruled against the protestors. The Court determined the Plaza was not a traditional public forum and found it unnecessary to define what type of forum it is: “Due to the lack of clarity in the record on this point, we leave for another day a more definite resolution of the Plaza’s status as either a limited public forum or a non-traditional public forum.” Under either limited public forum or non-traditional public forum analysis the protestors lose: “The distinction is immaterial in this case, because the Union’s proposed activities fall outside the class of expressive uses for which the Plaza has been opened.” If Zuccotti Park is not found to be a traditional public forum the occupation may end.

When determining whether a location is a traditional public forum courts look to its primary function and purpose. In Hotel & Rest. Employees Union the Second Circuit found “it apparent that the Plaza’s primary function and purpose is to serve as a pleasing forecourt at the center of the prominent performing arts complex, to facilitate patron’s passage into events taking place in the arts buildings… the Plaza was not created primarily to operate as a public artery, nor to provide an open forum for all forms of public expression.” The argument for Zuccotti Park as a traditional public forum for speech is stronger. A strong piece of evidence showing the government intended for the park to be a forum for debate is the park’s previous name, Liberty Park. Further the proximity of the park near Wall Street suggests that the government specifically considered this sort of protest.

Conclusion

Brookfield Office Properties is in a difficult position. It seems unwieldy for them to remove out the protestors who have garnered quite a bit of support. Yet there are serious noise, sanitation, and access concerns. The easiest solution for Brookfield is to allow Mayor Bloomberg to deal with the protestors. Mayor Bloomberg is not in a great position either and only has several outdated Supreme Court cases to guide him in making a regulation. Zuccotti Park is different from the park in Clark or the Plaza in Hotel & Rest. Employees Union. If the park were private Brookfield could force the protestors to leave and even charge trespass. If the park were public the New York City regulations restricting sleeping parks would apply. But Zuccotti Park is a forum that is becoming more common, a private park for public use.

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